Short answer
An EU measure can be annulled under Article 263 of the Treaty on the Functioning of the European Union (TFEU) when the institution lacked power to adopt it, failed to comply with an essential procedural requirement, used its power mainly for an improper end or to evade a prescribed procedure, or otherwise infringed EU law. Inadequate reasons usually fall within the essential-procedure ground because Article 296 TFEU requires legal acts to state the reasons on which they are based.
The labels are not interchangeable. Lack of competence concerns conferred power and legal basis. A procedural plea must identify an essential step, not a harmless irregularity. A reasons plea asks whether the institution disclosed enough for understanding and judicial review, not whether its reasoning was factually correct. Misuse of powers is narrower: objective evidence must show that an unstated end was the exclusive or main purpose, or that a prescribed procedure was evaded.
Article 263 supplies distinct grounds of review
Article 263 authorises the Court of Justice of the European Union to review EU acts intended to produce legal effects. Its central list of grounds is deliberately broad:
“It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.”
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That paragraph identifies privileged applicants. Others face Article 263's standing conditions. Proceedings normally must be brought within two months of publication, notification or knowledge, as applicable.
The grounds can overlap in their facts, but they perform different legal work and require different evidence. An incorrect legal basis may expose a competence problem; an omitted consultation may be a procedural defect; and a thin explanation may breach Article 296.
Lack of competence: did the EU have this power, on this legal basis?
Article 5 of the Treaty on European Union makes conferral the starting point: the Union may act only within competences conferred by the Member States in the Treaties. A measure is therefore vulnerable if no EU competence covers it, the wrong institution exercised the power, or the selected legal basis does not authorise the measure's objective and content.
Case C-376/98, Germany v Parliament and Council, illustrates real review rather than deference to an institution's label. Directive 98/43/EC broadly prohibited tobacco advertising and sponsorship on the former internal-market legal basis. The Court held that this basis did not confer a general regulatory power: the measure had genuinely to improve conditions for establishing and operating the internal market. Narrower cross-border advertising rules might have been possible, but the general prohibition went further. Because removing selected parts would have rewritten the measure, the Court annulled the directive entirely.
The inquiry is objective: what purpose and content does the act have, and what conditions attach to its legal basis? A politically important objective cannot itself create a competence.
Essential procedure: not every irregularity invalidates an act
A procedural failure supports annulment when the disregarded requirement is essential. Such requirements may protect institutional balance, democratic participation, defence rights, authentication or required consultation. Not every administrative imperfection invalidates an act.
Case 138/79, Roquette Frères v Council, gives a clear example. The applicable Treaty provision required consultation of the European Parliament. The Council requested an opinion but adopted the regulation without receiving it, although it had not exhausted available procedures for obtaining Parliament's view. The Court concluded:
“It follows that in the absence of the opinion of the Parliament required by Article 43 of the Treaty Regulation No 1293/79 amending Council Regulation No 1111/77 must be declared void without prejudice to the Council's power following the present judgment to take all appropriate measures pursuant to the first paragraph of Article 176 of the Treaty.”
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The defect mattered because consultation was how Parliament participated in the legislative process. Merely requesting an opinion did not satisfy the requirement that Parliament express it. Another procedural plea must likewise establish why the omitted step was required and essential.
Inadequate reasons: can the decision and its basis be understood and reviewed?
Article 296 TFEU creates an express duty:
“Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties.”
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The purpose is practical. Reasons must let the person concerned understand why the measure was adopted and let the EU courts exercise judicial review. In Case C-417/11 P, Council v Bamba, the Court stated the core standard:
“The statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review …”
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Adequacy is contextual. The court considers the act's nature, wording, governing rules and the affected person's interest in an explanation. Reasons need not address every fact and legal argument. Individual restrictive measures may require specific reasons, while a general measure may be explained more generally.
Reasoning is different from merits. In Bamba, the Court found the Council's reasons sufficient and set aside the contrary General Court judgment; whether the alleged conduct was true and justified was separate. Likewise, in France and Ireland v Commission, alleged errors in recitals concerned substance, not whether reasons had been stated. A claimant should separate “the institution did not explain” from “its explanation rests on bad facts or law”.
Misuse of powers: a narrow, evidence-heavy ground
Misuse of powers is not established merely because an act has unwelcome effects, the institution exercised broad discretion, or another policy explanation seems more convincing. The Court's formulation in France and Ireland v Commission is demanding:
“The Court has held ... that adoption by a Community institution of a measure with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case constitutes misuse of power.”
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The plea failed there. Ireland produced no evidence that the Commission pursued an aim other than the stated aims, and the Commission had used the procedure authorised by the governing regulation. In Case C-331/88, Fedesa, the Court described the necessary indicators more precisely as “objective, relevant and consistent factors”. A credible plea therefore needs that kind of evidence of the real purpose or procedural evasion. Suspicion, policy disagreement or proof of a secondary motive will not normally meet the “exclusive or main purpose” threshold.
What happens after a successful plea?
Under Article 264 TFEU, the Court declares the act void if the action is well founded. Annulment may cover the whole act or only severable provisions. The decisive question is whether the remaining provisions can stand without changing the substance of what the adopting institution enacted. Germany v Parliament and Council shows the limit: the Court refused partial annulment where selecting the surviving advertising prohibitions would effectively have amended the directive.
Article 264 also allows the Court to identify effects of an annulled act that remain definitive. Annulment does not prevent a lawful replacement using the correct competence, procedure and reasoning.
A practical assessment checklist
- Identify the act, challenged provisions, author and intended legal effects.
- Confirm standing, court and the Article 263 filing period.
- Compare the act's objective and content with its stated legal basis.
- Reconstruct the required procedure and each omitted step.
- Assess the contemporaneous reasons separately from factual or legal error.
- For misuse of powers, look for objective indications of the exclusive or main purpose or procedural evasion.
- Test whether the unlawful part is genuinely severable and whether preserving effects may be necessary.
Conclusion
An EU measure is not annulled simply because its policy is contestable. Lack of competence requires a mismatch between conferred power, legal basis, purpose or content. An essential-procedure claim requires a legally fundamental omitted step. Article 296 requires reasons sufficient for understanding and judicial review, but not a recital answering every argument. Misuse of powers demands convincing evidence that an improper end was the exclusive or main purpose, or that a prescribed procedure was evaded. When one of those defects is established in an admissible and timely action, Article 264 allows the EU courts to declare the act void, subject to severability and any justified preservation of effects.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.